Conover v. The Mutual Insurance Company of Albany.

R. S. 406, 79; Mappa v. Pease, 15 Wend. 669; Mann v. Herkimer Mutual Ins. Co., 4 Hill, 187.) (a)

There was sufficient evidence to carry the cause to the jury on the question of authority in the secretary to consent to the assignment of the policy. Although he had no written authority, he had often given consent in other cases; and the jury could not but have found, upon the evidence, that what he did had been approved by the company. And besides; it was enough that the secretary was a principal officer or agent of the company, and that he gave the consent on application for that purpose, at the place where the company transacted its business. His authority should be presumed until the contrary appears. (Bank of Vergennes v. Warren, 7 Hill, 91.) If the case of Dawes v. The North River Ins. Co., (7 Cowen, 462,) must be considered as laying down a different doctrine, we feel constrain ed to say that the decision cannot be supported.

The defendants insist that the mortgage to Gridley was an alienation of the insured property within the meaning of the seventh section of the charter of the company. (Statutes of 1836, p. 315, and 44.) But we think otherwise. The alienation spoken of in the statute is an absolute transfer of the title to the property. The mortgage only created a lien on the land for the security of a debt.

If the case had been within the seventh section of the charter, the action should have been brought in the name of Gridley. (Mann v. The Herkimer Ins. Co., 4 Hill, 187.) But as the case was not within that section, the action was necessarily brought in the name of Conover, though for the benefit of Gridley. (Jessel v. The Williamsburgh Ins. Co., 3 Hill, 8S.) There was no error on the trial.

New trial denied.

(a) See also Slocum v. Fairchild, in the court for the correction of errors, (7 Hill, 292.)

END OF JULY TERM.

DECISIONS OF CASES

ARGUED AT THE

SPECIAL TERM,

IN SEPTEMBER, 1846.

THE MANUFACTURERS' AND MECHANICS' BANK OF THE NORTHERN LIBERTIES OF THE COUNTY OF PHILADELPHIA vs. BOYD & COWDEN.

A warrant of attorney to confess judgment executed by residents of Pennsylvania, which by a fair construction of its terms contemplated a judgment in a court of that state, will not uphold a judgment entered in this state. The same point decide-d in The Manufacturers' and Mechanics' Bank of Philadelphia v. St. John, (5 Hill, 497,) reasserted.

The provisions of the revised statutes forbidding the setting aside a judgment for irregularity after the expiration of one year, (2 R. S. 359, § 2,) does not prevent the setting aside a judgment by confession after that period, for the want of a sufficient warrant of attorney to confess such judgment.

The rule that a judgment regularly confessed by a solvent attorney will not be set aside on motion for the want of authority in the attorney, does not apply where the plaintiff procured the attorney to act; e. g. where the defendant executed a warrant authorizing the confession of a judgment in Pennsylvania, upon pretence of which the plaintiff procured a confession to be signed by an attorney of this court and a judgment to be entered here.

JUDGMENT against the defendants was entered in this court on the 10th of February, 1842, for $60,000 of debt, by virtue of a bond and warrant of attorney executed by the defendants to the plaintiffs on the 16th of April, 1841. The warrant was like that in 3 Hill, 461, (see also 5 id. 497,) except that it named a different attorney, and described both of the defendants as resiVOL. III.* 33 [257]

Manuf. and Merch. Bank of the Northern Liberties v. Boyd.

dents of the state of Pennsylvania. The defendants did not learn that a judgment had been entered until the 6th of May last, and they gave notice of this motion for the June special term, when it went over until the present term for the accommodation of the plaintiffs.

N. Hill Jr., for the defendants, moved to set aside the judgment, on the ground that the warrant of attorney gave no authority whatever for entering a judgment in this state. Manufac turers' Bank v. St. John, 5 Hill, 497.)

J. A. Collier, for the plaintiffs, said the warrant was broad enough to authorize a judgment here. 2. More than a year has elapsed since the judgment was entered, and it cannot now be set aside for irregularity. (2 R. S. 359, § 2.) 3. An attorney of this court appeared and confessed the judgment, and it does not appear that he is insolvent: the defendants must be left to their remedy against the attorney. (6 John. 296; 9 Wend. 437.)

By the Court, BRONSON, Ch. J. We adhere to the opinion expressed in The Manufacturers' Bank v. St. John, (5 Hill, 497,) that the warrant of attorney did not authorize the entry of a judgment in this state.

Although more than a year has elapsed since the judgment was entered, the motion is not made on the ground of mere irregularity. It involves a substantial matter of right. A judgment has been entered against the defendants without authority. The statute does not apply to such a case. (Dederick's Adm. v. Richley, 19 Wend. 108.) The defendants have lost no time in making the motion after they were informed of the judgment.

This is not a case for leaving the defendants to an action. against the attorney who appeared in their names and confessed the judgment. The plaintiffs were parties to that transaction. They did what the creditor always does in such cases, presented the warrant, and requested the attorney to act under it. Although it is probable that neither they nor the attorney supposed they were doing a wrong, yet a wrong was done; and as the plain

Slocum v. Lansing.

tiffs were concerned in it, they can claim no benefit under it. It is not like a case where an attorney appears and acts for a defendant, without any knowledge on the part of the plaintiff that the attorney is acting without authority.

Motion granted.

SLOCUM vs. Lansing.

Where a defendant paid the costs of the circuit and of the motion, upon obtaining a new trial on payment of costs, and afterwards had judgment as in case of nonsuit in his favor; held that he was not entitled to tax his own costs of the application for a new trial.

COSTS. The cause was tried in March, 1839, when the plaintiff obtained a verdict. The defendant made a case, and obtained a new trial, on payment of costs; and he paid the plaintiff's costs of the circuit at which the cause was tried, and the costs of opposing the motion for a new trial. The defendant afterwards obtained a judgment as in case of nonsuit, and in his bill of costs charged and had taxed all his own costs on the application for a new trial, amounting to $107,81.

S. Stevens, for the plaintiff, moved for a retaxation of the costs, and that the sum of $107,81 be deducted from the bill as taxed.

M. T. Reynolds, for the defendant.

As the defendant was rethe new trial must have her than of strict right;

By the Court, BRONSON, Ch. J quired tests, the granting been considered i 179 of favor and the defendant cannot be entitled to the costs of his proceedings to obtain the favor.(a)

Motion granted.

(a) So where a plaintiff pays costs of a circuit for not proceeding to trial pursuant to notice, and afterwards recovers in the suit, he cannot tax his own costs of that

Willard v. Harbeck.

circuit. (Linacre v. Lush, 3 Wend. 305.) But where a new trial is granted at the instance of the plaintiff, the costs to abide the result, and the defendant recovers, he is entitled to his costs of opposing the motion for a new trial. (Coon v. Thurman, 2 Hill, 357.)

WILLARD and others vs. HARBECK and another.

Where a hearing before referees falls through, on account of the non-attendance of one of the referees, the party who succeeds is entitled to tax an attorney's fee and a counsel fee, for attending prepared for trial; and also subpœnas, tickets and the fee for serving them, and witness' fees.

An attorney who prosecutes or defends his own suit in person, may tax attorney's fees as in other cases, except a retaining fee, which is not taxable.

MOTION by defendants for re-taxation of costs. The plaintiffs recovered on a hearing before referees. The first meeting of the referees was held pursuant to notice, October 14, 1844, when the referees were sworn, and adjourned to the 5th of December; on which day the hearing fell through in consequence of the absence of one of the referees. The plaintiffs again noticed for hearing on the 24th January, 1845, when the hearing again failed for the same cause. The same thing happened again on the 20th of June. The cause was noticed again for the 22d of December, when the hearing commenced, and after having been continued on several days, and after several adjournments, the referees made their report in April, 1846. The plaintiffs charged an attorney and counsel fee amounting to $6 for each time that they attended in pursuance of a new notice of hearing, although the hearing fell through. They also charged subpoenas, tickets and serving for each of those occasions, on proof that the services were rendered. Witnesses' fees were also charged, on proof that they were subpoenaed and attended at those times.

J. Pierson, for the defendants.

J. D. Willard, for the plaintiffs.